CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

November 13, 2009

NO ACCOUNTABILITY FOR PROSECUTORS GONE ROGUE

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 3:59 am

Absolute Immunity from Civil Liability, Accountability for Prosecutors

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The primary ethical and legal duty of a criminal prosecutor is to serve the interests of justice—not their personal interests of winning at any costs as is too often the case with a many prosecutors. This was made clear in October 2008 in the federal prosecution of then-Senator Ted Stevens (R-Alaska) for high-profile corruption charges. The federal prosecutors in the case were determined to bring down one of the most powerful lawmakers in this country—at any costs. D.C. District Court Judge Emmet Sullivan lambasted those prosecutors at the time saying that in his 25 years on the bench he had “never seen mishandling and misconduct like what I have seen” in Sen. Stevens’ case. The federal judge was so incensed at the prosecutorial misconduct that he appointed an outside attorney named Henry Schuelke to investigate the Stevens prosecutors for possible “criminal contempt.” The matter was essentially resolved when current U.S. Attorney Eric Holder requested, and secured, a reversal of Sen. Stevens’ conviction from Judge Sullivan earlier this year.

But the legal and political fallout from the Stevens case lingers in the federal judiciary.  Last month in a meeting with members of the federal Judiciary’s Criminal Rules Advisory Committee Assistant U.S. Attorney Larry Breuer informed the committee that while the Justice Department had implemented “new measures” to ensure that federal prosecutors fulfill their responsibility to disclose any potentially exculpatory information to the defense, the Department would stand firm against expanding the Brady disclosure requirements under Rule 16 of the Federal Rules of Criminal Procedure.  Why?  Do they seek justice or hide it?

Writing in www.mainjustice.com, Joe Palazzolo said that Breuer presentation was a rebuttal to an earlier request by Judge Sullivan urging the committee to consider amending Rule 16 requiring federal prosecutors to “turn over all exculpatory information to defense lawyers in criminal cases.” Sullivan informed the committee that “such a rule would eliminate the need for the court to enter discovery orders that simply restate the law in this area, reduce discovery disputes, and help ensure the integrity and fairness of criminal proceedings.”

Former Harris County District Attorneys Johnny Holmes and Charles “Chuck” Rosenthal left a deplorable legacy of prosecutorial misconduct involving cases where prosecutors not only withheld clearly exculpatory information but fabricated evidence, including the knowing use of perjured testimony, to secure criminal conviction—even in death penalty cases. The administration of these two former district attorneys, which spanned nearly 30 years, was proud of their “win-at-any-costs” philosophy that ultimately morphed into unofficial policy. And things really have not improved much under current “reform” District Attorney Pat Lykos who took office earlier this year. One of her prosecutors was recently discovered hiding potentially exculpatory information in a sexual assault case. The alleged victim had initially identified her attacker as being “black” but he actually turned out to be white. This information was apparently deliberately withheld from the defense attorneys involved in the case. (more…)

October 24, 2009

DOMESTIC VIOLENCE - A SENSITIVE SUBJECT TO APPROACH

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 1:50 pm

October is Domestic Violence Awareness Month: Friends and Family Need to Get Involved to Stop the Cycle of Abuse, Save a Life

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

This past August Christiana “Tina” Guerra Lewis became another statistic; a victim of a social epidemic far more deadly than the HINI virus. The night before her death, according to the Houston Chronicle, Lewis asked her mother to go with her the next day to get a restraining order against R.P., a man with a lengthy criminal record with at least two dozen arrests including an assault on a family member and injuring a child.

Lewis did not live to see the next day.  She became one of the every three women murdered each day in this country by their spouses or intimate partners, according to a recent Chronicle op-ed article by Rebecca L. White, president and CEO of the Houston Area Women’s Center, and James L. Postl, former CEO of Pennzoil Quaker State. Police charged that R.P. stabbed Lewis numerous times in the neck in her trailer residence in Channelview.

R.P. has a long history of domestic violence. He was committed to the Texas Department of Criminal Justice on at least four occasions, the last commitment being for an assault on a family member. He came from a family environment of domestic violence. In 2000 his mother was convicted of killing her live-in boyfriend by dropping a 40-lb cinder block on his head.

While the Lewis family told the Chronicle that Lewis was probably unaware of R.P’s extensive criminal record and history of domestic violence, she was aware of his propensity for violence. The Chronicle reported that four days before R.P killed her, he broke into Lewis’ residence, beat her up, raped her, and stole money from her. He warned her not to call the police, threatening to kill her family if she did. She didn’t. She even refused to go to the hospital for treatment, telling a sister: “For what? They’re not going to do anything.” (more…)

October 16, 2009

STOP AND FRISK

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 10:18 pm

Increased Use of Stop and Frisk Leads to Increased Constitutional Abuses, Legitimizes Racial Profiling

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

Law enforcement officials claim “stop and frisk” is one of their most effective crime prevention practices. Civil libertarians, however, claim that “stop and frisk” is being used as another racial profiling tool against hundreds of thousands of innocent citizens each day across the country. The Associated Press recently released statistics showing that law enforcement stop and question more than one million people each year in the nation’s largest cities—a figure that reflects a sharp increase in the use of “stop and frisk” over the past few years. The AP figures revealed that most of the individuals stopped and frisked were black and Hispanic men, most of whom were innocent of any criminal wrongdoing.

The fact that the “stop and frisk” practice often targets racial minorities who have not violated any law does not deter New York City Police Commissioner Raymond Kelly from being an ardent and vocal supporter of the practice. The Commissioner informed AP that his officers will stop as many as 600,000 individuals this year alone but will arrest only 10 percent of them.

“This is a proven law enforcement tactic to fight and deter crime, one that is authorized by criminal procedure,” he told AP.

But the New York figures are indeed troubling. AP reported that of the 531,159 people stopped by the city’s police department in 2008, 51 percent were black, 32 percent were Hispanic, and 11 percent were white. Even more troubling is the fact that New York City police stopped five times as many people in 2008 than they did in 2002.

David Harris is a law professor at the University of Pittsburgh. As an expert on stop and frisk, Harris has become increasingly troubled by the practice because it yields very few weapons, drugs or evidence of any crime. (more…)

October 2, 2009

THE JUNK SCIENCE OF DOG SCENT LINEUPS

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 9:16 am

Popular Law Enforcement Dog Handler Discredited After False Results, Exaggerated Claims of Accuracy Exposed

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

We have blogged (False Forensics: An Attorney’s Worst Nightmare, May 1, 2009) in the past about the dangers of “false forensic” evidence being used in courtrooms to convict innocent people. The New York-based Innocence Project reported in 2007 that 65% of the nation’s first 200 DNA exonerations in this country involved fraudulent, unreliable or limited forensic science. Wrongful convictions based on false forensics—or what is commonly referred to as “junk science”—in the State of Texas occur with the same or at a greater frequency.

And what is “junk science?”

In an September 21, 2009 special report titled “Dog Scent Lineups: A Junk Science Injustice,” the Texas Innocence Project (TIP) provided the following illustrative definition: “Even before the television show ‘CSI’ became popular, juries and judges have tended to believe what ‘scientific experts’ say in criminal cases—especially if these ‘experts’ are police officers or prosecution witnesses. One study found that ‘about one quarter of jurors who were presented with scientific evidence believed that had such evidence been absent, they would have changed their verdicts—from guilty to not guilty.’ In the hands of a skilled prosecutor, scientific-sounding testimony from any source, no matter how fraudulent, can be played to great dramatic effect and win convictions.

“Prosecutors have taken full advantage of the gullibility of jurors and the willingness of courts to allow the use of these techniques. In case after case, prosecutors have used phony ‘experts’ with little or no training or education, false results from shoddy labs and dubious ‘theories’ with no basis in fact to get convictions. Taken together, these abusive practices have come to be known as the use of ‘junk science.’ The use of this ‘evidence’ is not limited to the courtroom: law enforcement agencies have come more and more to rely on it in making arrests and getting indictments.”

There is no greater “junk science” than “dog scent lineups” and the phoniest “expert” involved in this particular junk science is a Fort Bend County deputy sheriff named Keith Pikett. A native of New York, Pikett served six years in the Navy after he graduated from high school before taking a job at a ship yard in the early 1970s in Mobile, Alabama, according to TIP. He then graduated from the University of South Alabama with a chemistry degree and in 1984 received a master’s degree in “Sport Science” at an Alabama institution called United States Sports Academy. (more…)

September 21, 2009

LIFE WITHOUT PAROLE FOR JUVENILES ELIMINATED

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 11:59 am

Texas Takes Small First Step Towards Humane Treatment, Punishment for Youthful Offenders

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Texas Criminal Defense Lawyers Association (TCDLA) releases every two years after each session of the Texas Legislature a summary of new or amended laws enacted during the legislative session. This year Kristin Etter (TCDLA’s Voice of the Defense) has provided this continuing education service from TCDLA to criminal defense attorneys throughout the state. It is not only a continuing education service but an invaluable research tool as well. This blog over the next couple months will feature in depth articles about the most significant pieces of legislation that emanated out of the 2009 Texas Legislature and their potential impact on the state’s criminal justice system with special appreciation to the TCDLA.

For example, one of the most significant changes in our laws was the Legislature decision to eliminate life without parole for juvenile offenders who are certified as adults under Texas Penal Code § 54.02 and tried for capital murder under Texas Penal Code § 12.31. The Legislature amended the Texas Government Code § 504.145 to allow for parole eligibility for juveniles tried as adults after a period of 40 years.

This legislation is significant because the U.S. Supreme Court in two consolidated Florida cases, Terrance Jamar Graham and Joseph Sullivan, both of whom received life sentences without the benefit of parole, has decided this term to decide the issue of whether life without parole for juveniles tried as adults is unconstitutional as being cruel and unusual punishment under the Eighth Amendment. At age 16, Graham was convicted of being an accomplice to an armed burglary and attempted armed robbery—the only criminal offenses he had ever committed in his life—and sentenced to life without parole. At age 13, Joe Sullivan was convicted of a rape committed following a house burglary and sentenced to life without parole with there being serious doubts about whether Sullivan was the actual rapist.

As of July 2009, the Washington, D.C.-based The Sentencing Project (Nellis, Ashley and King, Ryan S. No Exit: The Expanding Use of Life Sentences in America) reported that there are 140,610 individuals serving a life sentence in the nation’s prison system (one in every 11 prisoners). Of those lifers, 6,807 of them are juveniles tried as adults with 1,755 (or 25.8%) of them being juvenile life sentences without parole (JLWOP). (more…)

September 17, 2009

DISTRICT ATTORNEY’S OFFICE DOESN’T CARE IF CYNTHIA CASH IS ACTUALLY INNOCENT

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 11:02 am

The Philosophy of Convict at any Cost Continues in Harris County

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

Dr. Patricia Moore is the former associate medical examiner in Harris County. The Houston Chronicle (Sept. 14, 2009) reported that the doctor has been “repeatedly disciplined for failing to follow procedures and for favoring the prosecution in 1998 and 1999” in child death cases.

During Dr. Moore’s tenure with the Harris County Medical Examiner’s Office, she conducted a number of autopsies in children’s deaths whose results have been challenged as not being medically accurate. One of those autopsies involved the 1998 death of a 4-month-old baby, who died in the care of a babysitter named Cynthia Cash, and led the Harris County District Attorney’s Office to file criminal charges against Cash.

Ken Cash, the babysitter’s husband, recently told the Chronicle that “they [District Attorney’s office] railroaded her in that autopsy report. She is innocent.”

Ken Cash’s claim of innocence for his wife recently gained significant support after it was recently discovered that the Harris County Medical Examiner’s office in February 2008 revised the autopsy that served as the genesis of the criminal charge filed against Cynthia Cash and the subsequent prison sentence she received.

According to the Chronicle, the new autopsy report changed the cause of death from “homicide” to “undetermined” and also added that it found no evidence of trauma.  This assertion was given credence by Dr. Richard M. Hirshberg, a neurologist expert who reviewed the 2008 revised autopsy report. Hirshberg, who testified at Cash’s trial as a defense expert witness that he had found none of what the Chronicle called “classic signs of  shaken baby syndrome,” told the newspaper for its September 14 article: “It’s my firm belief now as it was during the Feb. 5, 1999, trial that [Cynthia Cash] is innocent.” (more…)

August 29, 2009

REFORM OR INCOMPETENCE: THE PAT LYKOS ERA OFF TO UNCERTAIN START

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 6:26 pm

Harris County District Attorney’s Office Administration Begins to Define Itself

By: Houston Criminal Defense Attorney John Floyd and paralegal Billy Sinclair

The Houston Chronicle reported recently in yet another article that a number of veteran prosecutors have departed from the Harris County District Attorney’s Office. Throughout DA Pat Lykos’ 2008 campaign to replace the former district attorney, Charles “Chuck” Rosenthal who was forced to resign in disgrace, rumors dogged the “reform” candidate that, as a criminal district court judge, Lykos had a reputation for being intemperate, rude, and pronged to stirring unrest in both her courtroom and chambers.

Shortly after Lykos defeated Democratic candidate Johnny Bradford last November she promised to “clean house” as the Chronicle reported. Upon taking office, she immediately fired seven “veteran prosecutors” from the Rosenthal era. Some criminal defense attorneys hailed the firings as an indication that the “convict at any costs” prosecutorial philosophy of the Rosenthal administration was coming to an end and a more professional era was on the horizon. Other criminal defense attorneys, most with a lot of experience in the courthouse gang, were not so optimistic.

We accepted Lykos’ promise of reform at face value. In fact, we wrote about the so-called “new era of reform” (“District Attorney Pat Lykos Continues New Era of Reform in Harris County,” April 5, 2009). While, we were glad to see some of the old guard gone, we were not exactly convinced that Lykos’ early prosecutor dismissals were indicators of reform as opposed to old fashion politics. We nonetheless decided to subscribe to a time-honored principle and “give credit where credit is due.”

But then disappointment happened on the road to “reform” that caused us to view Lykos’ “reform” claims with a jaundice eye. She announced with much fanfare in the local media, fulfilling a campaign promise, that the district attorney’s office would make “offense reports” available to criminal defense attorneys. During the previous administrations, a criminal defense attorney had been forced to meet with the prosecutor handling a given case, put on a smiley face of deference, and request permission to hand copy notes from the prosecutor’s file, including offense reports. It was an arduous, time-consuming process—not to mention a sophomoric one—that sustained a perpetual attitude of animosity between defense attorney and prosecutor. (more…)

August 19, 2009

THE MAGIC DNA BULLET LOSES SOME OF ITS LUSTER

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 4:56 pm

Fabricating Fake DNA, Defending the Accused in the New World

By: Houston Criminal Defense Attorney John Floyd and Billy Sinclair, Paralegal

We have blogged on several occasions in the recent past about the fallibility of forensic evidence, sharing the opinion of others that more often than not it’s “junk science.” However, DNA evidence has generally remained insulated from the ever increasing scientific indictment of forensic evidence in general. Not any more. The New York Times recently reported (August 18, 2009) about a paper published online by the journal Forensic Science Internal: Genetics. Citing this authoritative paper, the Times reported that scientists in Israel have established that it is now possible to fabricate DNA evidence, “undermining the credibility of what has been the gold standard of proof in criminal cases.”

Times reporter Andrew Pollack wrote that “the scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.”

That’s scary Orwellian kind of stuff. The Harris County criminal justice system has suffered through nearly a decade of revelations about how the Houston City Police Department’s Crime Lab routinely fabricated forensic evidence to secure convictions and long term sentences in sexual assault and capital murder cases. DNA evidence was the “silver bullet” that frequently came to the rescue in these cases and resulted in the exoneration of innocent individuals framed by the Harris County District Attorney’s office and the Houston crime lab. There have been at least six such cases, and defense attorneys say there are probably hundreds more in the Texas prison system.

We know the Government not only lies but routinely suborns perjury on a regular basis, especially in terrorism, narcotics and organized crime cases. Defense attorneys must now face the very real prospect that in high profile criminal cases, such as those involving “terrorism” and national security, the Government could literally manufacture a crime scene with the fabricated DNA evidence to convict suspected “home-grown” terrorists, drug cartel kingpins, and Mafia bosses. This is not just idle speculation by a criminal defense attorney with a vested interest. (more…)

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